My submission about increasing maximum penalties on the Conservation Estate

I’ve finally put my submission in for the Conservation (Natural Heritage Protection) Bill, which (if successful) will increase maximum penalties available for many crimes on the Conservation Estate by about ten-fold. Often this will be good. For example, judges have commented on the frustration with the low penalties they’ve been restricted to when sentencing international criminals who’ve been caught smuggling out protected wildlife for sale on the black market. Enabling a higher penalty will increase the risk, set a much higher black market price on our wildlife, and hopefully make the practice less common. The Bill has cross-party support for these types of reasons, and will most likely enter law. You can read everything they said about it when it had its first day in parliament over here.

My main concern is that the existing indirectly-specified $10,000/1-year-jail penalty for entering “closed” Conservation Areas was already disproportionate and inconsistent with the $500 fine for a nearly identical National Park situation. Following the Bill, that inconsistency will be magnified to a $100,000/2-year-jail penalty compared with a $5,000 fine. This is part of what I discussed in my earlier post regarding DoC and the word “closed”.

The Bill is now at the stage of receiving public submissions, which will be considered by the Local Government and Environment Select Committee (a selected committee of sitting MPs) to make recommendations for any changes to the Bill before it’s sent back to Parliament to be voted on again. If you’d like to make a submission, which can be as short or lengthy, formal or informal as you like, and you don’t have to agree with me, the closing date for submissions is February 28th 2013. A submission can be completed online by visiting Parliament’s status page for the Bill, clicking the Make a Submission link on the right hand side (it links to here), scrolling to the end of the page and following the instructions to make an online submission.

Anyway, I’ve included the text of my submission below.

Submission on the Conservation (Natural Heritage Protection) Bill

This submission is about penalties that apply to Section 13 of the Conservation Act, for entering closed land.

My main interest in this Bill is from a tramping and outdoor recreational perspective. I’m a member of the Wellington Tramping and Mountaineering Club, and I maintain a blog at http://www.windy.gen.nz/ where I often comment and generate discussions about outdoor recreation and safety issues. I recently authored an opinion piece for the November 2012 Federated Mountain Clubs Bulletin, regarding the Department of Conservation’s tendency to sometimes infer that places are closed for public access when they aren’t. Part of my interest in this Bill was generated by research that I carried out for this.

Submission summary

A stated purpose of the Conservation (Natural Heritage Protection) Bill, is to implement a consistent approach to penalties across the main enactments administered by the Department of Conservation.

I generally support the progress of this Bill, but only with the following changes:

  1. The Conservation Act should provide a specific maximum penalty for breaches of Section 13 (“Conservation Areas may be closed”).
  2. The maximum penalty in this case should be set to a $5,000 fine, to make it consistent with the maximum penalty for a similar offence prescribed by Section 56(1)(m) of the National Parks Act if the Bill is later adjusted to set an alternative penalty in that section.
  3. If the maximum penalty for entering closed public land is changed within either Act before the Bill progresses, it should be set no higher than a maximum $5,000 fine.

The requested change will make the possible penalty for entering closed land in Conservation Areas under the Conservation Act consistent with a similar offence for entering closed areas in National Parks under the National Parks Act. A restricted penalty will also be more consistent with New Zealand’s policies for management and recreation on its conservation estate.

Reasoning

1. Existing and proposed penalties in the Conservation Act are inconsistent with the National Parks Act

Presently the Conservation Act specifies no maximum penalty for entering parts of Conservation Areas that have been closed to public access under Section 13. It therefore has a maximum penalty of $10,000 or one year in jail, according to Section 44 of the Act. This existing maximum penalty of $10,000 or a year in jail is already inconsistent with the maximum $500 fine for breaching a National Park bylaw that excludes public access under section 56(1)(c) of the National Parks Act.

With the unmodified passage of this Bill, the indirectly specified maximum penalty for entering closed land will increase to $100,000, or two years in jail, or community service. Even higher maximum penalties would be possible in commercial situations. Once again, this will continue to be inconsistent with the proposed $5,000 penalty for breach of a similar bylaw to close an area of a National Park.

Addition of a specific and consistent penalty for breach of Section 13 of the Conservation Act, through this Bill, will remove the inconsistency.

2. Proposed reasons for increasing penalties are unrelated to entering closed land

In the Bill’s first reading in parliament, all MPs who spoke expressed support. All speakers, however, justified their support for reasons of enabling higher penalties for crimes such as protecting plants and animals from international smugglers and collectors, committing violence against native animals (such as shooting Kereru or bashing seals), or releasing predators such as stoats into our natural environment. These are all crimes detailed by other parts of the relevant Acts. Nothing was expressed regarding entering closed land under Section 13 of the Conservation Act. This leads me to believe that the situation has not so far been closely considered by Members of Parliament.

3. High maximum penalties for entering closed land…

3a) …are not required for protection of flora and fauna or parks in general:
Conservation Areas, as with National Parks, may be closed under Section 13 for conservation purposes to protect flora and fauna or the area in general, but a heavy penalty is still not required for protection. If damage is caused to flora and fauna or to part of the park, a judge can still use alternative parts of the law to apply higher penalties if deemed appropriate, typically up to the default $100,000 or two years in jail. Many of these are listed in section 39 of the Conservation Act. eg. Section 39(1)(e) defines the crime of interfering with or damaging any historic or natural features.

If there is a long term or permanent reason to strictly control entry to public land and impose higher penalties for entry, it should be reclassified under the Reserves Act, which allows classifications more suited for management of land not intended for recreation purposes. Closure of land under the Conservation Act or National Parks Act should only be used for short term solutions to unexpected problems.

3b) …are inappropriate when land is closed for safety reasons:
Conservation Areas may also be declared closed under Section 13 for reasons of public safety or emergency. In such cases, a high penalty under the Conservation Act is inappropriate, especially considering New Zealand’s policy (discussed below) of requiring personal responsibility for safety on public land.

Visitors to conservation land have different skills and experience, and there’s clearly a need to assist people in remaining safe within their abilities when on conservation land, but the best tool for this is to provide clear advice and good facilities.

4. New Zealand’s Conservation General Policy requires personal responsibility, which is inconsistent with closure of land for safety reasons

The Department of Conservation and other New Zealand entities help people recognise and prepare for risks that exist on conservation land. For good reason, however, people are also required to accept personal responsibility for their decisions and actions. One of DoC’s functions (section 6(e) of the Conservation Act) is to foster recreation, but it does not have any function of protecting people from themselves as they recreate.

New Zealand’s general policy has always been that visitors to its backcountry be assumed to be equipped to make their own final decisions about their own safety. Many visitors are at least as well equipped as any government official. New Zealand’s own Conservation General Policy, which legally exists to determine the policy for managing Conservation Areas, states the following:

People are responsible for their own decisions on risks they are prepared to take on public conservation lands and waters and for ensuring that they and, generally, those in their care, have the level of skill and competence and the equipment required to cope with those risks.”

[Section 9.3, Hazards to people, Conservation General Policy, 2005.]

Even low risk activities, such as tramping, require care and good decision making. New Zealand has mature, reliable and expert organisations such as the Mountain Safety Council, which collates outdoor experience to produce peer-reviewed guidelines, training material and courses. Other organisations such as the New Zealand Alpine Club, Federated Mountain Clubs, and a large number of tramping and other outdoor clubs, also frequently focus on safety, skills and training.

A nearly-identical passage to that above, requiring personal responsibility, appears in section 8.3 of the General Policy for National Parks, 2005. The specific low maximum penalty allowed by the National Parks Act is consistent with policy, but the Conservation Act’s maximum penalty presently has no such consistency.

New Zealand also accepts that some people will consciously choose to take higher risks than others. Alpine mountaineering, for example, can be especially risky and attract people who are partial towards taking higher risks. Research by Dr Erik Monasterio, a Clinical Senior Lecturer in the Department of Psychological Medicine at the University of Otago, has found that committed alpine mountain climbers have a different approach to assessing and accepting risk than most other back-country users. Additional research by Murray Malcolm (also of the University of Otago) found that over four years, 50% of “experienced and committed mountaineers” had suffered at least one climbing-related injury, and had an 8% death rate from climbing accidents. Furthermore, the death rate of climbing some of our own highest peaks in Mount Cook National Park is approximately 4%. [See http://lamountaineers.org/oldtrips/Risks_of_Adventure_Sports.html for more information and more detailed references.]

People who visit conservation land are tuned to take responsibility for themselves, and choose the risks they wish to take. Areas should only rarely be closed for safety reasons, if ever. If and when a closure occurs, we must accept that some people will choose to ignore those restrictions, apply their own risk assessment skills, and visit the area anyway. Others, if they heed the restrictions, will be disappointed and annoyed that they’re being legally threatened with a disproportionately high penalty, despite being skilled and capable of assessing risk for themselves.

There is an ambient argument that such people could put rescuers at risk, but rescuers, as with those they rescue, are fully capable and trained for making their own safety assessments and not taking disproportionate risks to rescue other people.

5. Courts are unlikely to issue more than a similar fine to what’s available under the National Parks Act

If a case reached court, it’s unlikely that judges would consider anything but a relatively small fine compared with the maximum, or no penalty at all, especially in the context of New Zealand’s management and policies for its conservation estate. An exception might occur if the entry to closed land was combined with other breaches of the act, such as damage to flora and fauna, or clear malicious intent towards the values which the legislation is meant to protect, because breaches of those other clauses would enable other and higher penalties. In these cases, however, the other breaches would enable higher penalties.

It’s unfair to require a person to wait through the prosecution and court process with a possible penalty of $100,000 or jail time hanging over them, merely for disobeying a restriction of access on public land.

Summary

The purpose of the Bill is to encourage compliance by raising penalties, but the Conservation Act does not require the high maximum penalty, which is indirectly being proposed, to penalise those who enter land closed under section 13.

Where the intent is to protect flora and fauna, more suitable penalties can be obtained through other clauses in the Act, so are not required for section 13. Where the intent of a closure is safety, a high penalty is inappropriate as New Zealand’s general practice and policy is to require people to be responsible for their own safety. In either case, a high penalty is inconsistent with the explicitly restrained penalty that is available for similar actions by similar people in similar situations under the National Parks Act.

The can be fixed by setting a specific penalty that applies to entering land closed under Section 13 of the Conservation Act, to be a maximum $5,000 — the same penalty as will be available under the National Parks Act with the passage of this Bill.

Thank you for considering my submission.

This entry was posted in musing and tagged , , , , . Bookmark the permalink.